Boyd v. Office of Personnel Management ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
ROBIN G. BOYD,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2016-1078
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0845-15-0215-I-1.
______________________
Decided: March 20, 2017
______________________
CONO A. CARRANO, Akin Gump Strauss Hauer & Feld
LLP, Washington, DC, argued for petitioner. Also repre-
sented by RYAN S. STRONCZER.
ADAM E. LYONS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
ELIZABETH M. HOSFORD.
______________________
2 BOYD v. OPM
Before O’MALLEY, BRYSON, and WALLACH, Circuit
Judges.
BRYSON, Circuit Judge.
I
Petitioner Robin Boyd was a mail processor for the
United States Postal Service from 1985 to 2010. On
March 2, 2011, she applied for immediate retirement
based on disability. She also applied for disability retire-
ment annuity benefits under the Federal Employees
Retirement System (“FERS”).
By letter dated June 21, 2011, the Office of Personnel
Management (“OPM”) notified Ms. Boyd that it had
approved her application for disability retirement annuity
benefits. The letter explained that OPM would provide
her with monthly interim FERS benefits in the amount of
approximately 80% of her actual FERS benefits. The
letter further explained that Ms. Boyd would not receive
FERS benefits until OPM received confirmation that she
had applied for Social Security disability benefits. The
letter directed Ms. Boyd to apply for Social Security
benefits and to notify OPM when she applied for those
benefits.
In a separate paragraph, the letter contained the fol-
lowing directive, in boldface type: “If the Social Security
Administration awards you monthly benefits, you must
immediately notify us of the amount and the effective
date of the monthly benefit.”
The June 21, 2011, letter also explained that Ms.
Boyd’s FERS benefits would be offset by any Social Secu-
rity benefits she received. The offset for the first year
would be 100% of her Social Security benefits; the offset
after the first year would be 60% of her Social Security
benefits. See also 5 U.S.C. § 8452(a). The letter then
stated, also in boldface type:
BOYD v. OPM 3
Because the FERS disability benefit must be re-
duced by 100 percent of any Social Security bene-
fit payable for 12 months, Social Security checks
should not be negotiated until the FERS benefit
has been reduced. The Social Security checks will
be needed to pay OPM for the reduction which
should have been made in the FERS annuity.
Ms. Boyd admits that she received the June 21, 2011,
letter. She then applied for Social Security benefits and
continued receiving interim FERS benefits.
On August 18, 2012, the Social Security Administra-
tion advised Ms. Boyd that she was entitled to monthly
Social Security benefits starting with the month of August
2012. Ms. Boyd provided a copy of that notice to OPM in
September 2012.
OPM did not immediately reduce Ms. Boyd’s FERS
benefits by the amount of her Social Security benefits.
Nor did Ms. Boyd refrain from negotiating the Social
Security checks she received. Instead, she negotiated the
Social Security checks. Five months later, on January 20,
2013, OPM sent Ms. Boyd a letter stating that her FERS
benefits had been adjusted in light of the Social Security
benefits she had received since August 2012, and advising
her that she had been overpaid for the months of August
2012 through December 2012 in an amount totaling
$3,322. The letter stated that OPM would recover the
overpayment by offsetting her FERS benefits in 36
monthly installments of $92.27 beginning in April 2013.
On February 6, 2013, Ms. Boyd requested a waiver of
her obligation to reimburse OPM for the overpayment;
alternatively, she requested a reduced payment schedule
based on financial hardship. To support her request, she
enclosed a completed OPM Financial Resources Ques-
tionnaire in which she detailed her financial condition.
Following that request, OPM refrained from withholding
4 BOYD v. OPM
funds from her monthly benefits, pending resolution of
the waiver issue.
In a letter dated December 8, 2014, OPM advised Ms.
Boyd of the requirements for a waiver of the reimburse-
ment obligation. OPM informed her that it needed an
updated Financial Resources Questionnaire from her “in
order to make a fair decision on [her] request for waiver of
the overpayment.”
Ms. Boyd did not send OPM an updated Financial Re-
sources Questionnaire, and on January 16, 2015, OPM
denied her request for a waiver. The denial letter stated
that, “[b]ased on the evidence of record, including your
written submissions, [OPM] finds that recovery of the
overpayment would not be against equity and good con-
science.” However, upon considering Ms. Boyd’s 2013
Financial Resources Questionnaire, OPM adjusted her
repayment schedule and reduced the monthly offset by
more than half, from $92 to $40.
Proceeding pro se, Ms. Boyd appealed OPM’s denial to
the Merit Systems Protection Board. In her appeal form,
she elected e-filing and provided an email address to
receive notifications of filings and orders.
On February 10, 2015, the administrative judge as-
signed to Ms. Boyd’s appeal ordered her to submit any
evidence and argument in support of her appeal within 30
days. Ms. Boyd did not file anything. The administrative
judge then issued an order directing Ms. Boyd to show
good cause for her failure to respond, explaining that
absent a response, the administrative judge would decide
the case without a hearing and based solely on the writ-
ten record. Ms. Boyd again filed nothing.
The written record included Ms. Boyd’s OPM file. But
missing from the OPM file was the Financial Resources
Questionnaire that had been attached to her February
2013 waiver request; only the first page of that waiver
BOYD v. OPM 5
request was included, which did not include her responses
to the questionnaire.
Based on the written record, the administrative judge
affirmed OPM’s denial of a waiver. The administrative
judge found that Ms. Boyd had not demonstrated eligibil-
ity for a waiver because, “[a]lthough she timely notified
OPM after she was awarded [Social Security] disability
benefits,” she was “not without fault regarding the over-
payment.” Specifically, the administrative judge found
that Ms. Boyd had “neither alleged nor proved that she
did not receive OPM’s [June 21, 2011] letter,” and that
“[a]s such, she was instructed not to negotiate any [Social
Security] benefits checks until her FERS payment had
been reduced.” 1 Ms. Boyd was “not without fault,” the
administrative judge ruled, because she had failed to set
aside the Social Security checks as the June 21, 2011,
letter had directed. The administrative judge did not
reach the question whether collection of the overpayment
would be against equity and good conscience.
With regard to the adjustment of the repayment
schedule, the administrative judge noted that Ms. Boyd
did not submit a Financial Resources Questionnaire in
the appeal or offer other evidence regarding her monthly
income and expenses. For that reason, the administrative
judge concluded that there was no evidence to refute the
reasonableness of the reduced payment schedule proposed
by OPM.
Ms. Boyd filed a petition for review by the full Board.
She submitted new evidence of financial hardship and
alleged that she had not received any of the administra-
1 The opinion refers to a “January 16, 2015 letter.”
That date appears to be a scrivener’s error in light of the
administrative judge’s preceding reference to “OPM’s
June 21, 2011 letter” and the discussion of its contents.
6 BOYD v. OPM
tive judge’s communications. She explained that although
she had arranged to be notified of all Board proceedings
by email, her fiancé had deleted the emails sent by the
Board, thinking they were spam.
The Board affirmed the administrative judge’s deci-
sion that Ms. Boyd was not entitled to a waiver of her
repayment obligation. The Board concluded that she was
not entitled to a waiver because OPM had instructed her
not to negotiate the Social Security benefits checks, yet
she had done so. The Board also found that any short-
comings in the record before the administrative judge
were the result of Ms. Boyd’s lack of due diligence. With
respect to Ms. Boyd’s reassertion of her claim of financial
hardship, the Board found that in light of her failure to
offer evidence regarding her monthly income and expens-
es, there was no reason to disturb the administrative
judge’s decision affirming OPM’s adjusted monthly re-
payment schedule.
II
Ms. Boyd argues that the Board abused its discretion
(1) in determining that she was at fault for the overpay-
ment even though she notified OPM of her award of Social
Security benefits, (2) by failing to consider evidence of
financial hardship she had submitted to OPM and to the
Board, and (3) by finding that she had not shown good
cause for her failure to respond to the Board’s electronic
notices.
A
Regarding OPM’s collection of FERS overpayments, 5
U.S.C. § 8346(b) provides, in pertinent part:
Recovery of payments under this subchapter [in-
cluding FERS annuity benefits] may not be made
from an individual when, in the judgment of the
Office of Personnel Management, the individual is
BOYD v. OPM 7
without fault and recovery would be against equi-
ty and good conscience.
The statute delegates to OPM the authority to determine
what constitutes “without fault” and “recovery [that]
would be against equity and good conscience.” OPM has
done so by regulation, 5 C.F.R. § 831.1401 et seq., and
through published policy guidelines interpreting its
regulations. Ret. & Ins. Grp., U.S. Office of Pers. Mgmt.,
Policy Guidelines on the Disposition of Overpayments
under the Civil Service Retirement System and the Federal
Employees’ [sic] Retirement System (1995) (“Policy Guide-
lines”).
As pertinent here, the regulations provide that a
recipient of an overpayment is “without fault if he/she
performed no act of commission or omission which result-
ed in the overpayment.” 5 C.F.R. § 831.1402. One of the
considerations bearing on the finding of fault is whether
the recipient “accepted a payment which he/she knew or
should have known to be erroneous.” Id. § 831.1402(a)(3).
The regulations state that recovery is “against equity and
good conscience” when, among other factors, recovery
“would cause financial hardship to the person from whom
it is sought.” Id. § 831.1403(a)(1).
OPM’s Policy Guidelines explain in more detail what
is required for a waiver of FERS benefits overpayments
under the regulations. The guidelines state: “In general,
an individual is not without fault if,” inter alia, “he/she
accepted a payment which he/she knew to be erroneous[]
or . . . should have known to be erroneous.” Policy Guide-
lines § I.B.3. However, the guidelines also provide an
exception to the determination of fault:
Prompt Notification Exception. Individuals who
accept a payment in excess of the amount to which
they are entitled will automatically be found
without fault, regardless of whether they knew or
should have known that the payment was errone-
8 BOYD v. OPM
ous, if they promptly contact OPM and question
the correctness of the payment. In general, an in-
dividual must contact OPM within 60 days of the
receipt of the overpayment—i.e., a one-time
prompt notification requirement. (Note: This rule
provides an exception to the general rules cited
above (I.B.3) by allowing certain persons who
knowingly accept overpayments to be found with-
out fault if they demonstrate good faith by
promptly bringing the overpayments to OPM’s at-
tention. However, the fact that they suspected or
knew that they had received an overpayment—as
evidenced by their contacting of OPM—will have a
bearing on equity and good conscience determina-
tions. See the Set-Aside Rule, guideline I.C.4.)
Policy Guidelines § I.B.6.
The Set-Aside Rule, to which the Prompt Notification
Exception refers, states:
Individuals who are aware that they are receiving
overpayments are obligated by the principles of
equity and good conscience to set aside the
amount overpaid pending recoupment by OPM.
Thus, an individual who accepted a payment
which he/she suspected or knew to be erroneous
but who is found without fault under the Prompt
Notification Exception (I.B.6) is obliged to set the
overpaid money aside pending recovery by OPM. .
. . Unless there are exceptional circumstances, re-
covery by OPM in these cases is not against equity
and good conscience. (Note: Exceptional circum-
stances would involve extremely egregious errors
or delays by OPM—e.g., a failure to issue a writ-
ten decision within 4 years of a debtor’s request
for waiver. Financial hardship is not an excep-
tional circumstance.)
Policy Guidelines § I.C.4 (internal citations omitted).
BOYD v. OPM 9
As the quoted passages from the OPM Policy Guide-
lines make clear, an individual who is overpaid but who
promptly notifies OPM of the overpayment is categorically
deemed to be “without fault.” For such an individual, the
remaining question is whether recovery of the overpay-
ment would be against equity and good conscience. Under
the Set-Aside Rule, if that individual suspected or knew
that he or she had received an overpayment (and there-
fore had an obligation to set aside the overpaid funds), the
individual is not eligible for a waiver under the “equity
and good conscience” standard and would be entitled to
relief only under the more exacting “exceptional circum-
stances” standard.
1. OPM argues that substantial evidence supports
the administrative judge’s finding of fault, and that the
administrative judge “properly declined to consider the
equity and good conscience factor.” But OPM’s guidelines
are directly contrary to OPM’s position before this court.
In this appeal, OPM ignores the Prompt Notification
Exception and does not explain why that exception is
inapplicable to Ms. Boyd. Contrary to OPM’s argument,
the Prompt Notification Exception plainly applies to Ms.
Boyd’s situation, because after the Social Security Admin-
istration informed Ms. Boyd that she had been awarded
Social Security benefits, she notified OPM within 60 days
of her receipt of Social Security benefits for August 2012.
The Board has applied the Prompt Notification Excep-
tion in similar circumstances, with OPM’s acquiescence.
E.g., Maxwell v. Office of Pers. Mgmt., 78 M.S.P.R. 350,
361 (1998) (“OPM stipulated below that the appellant was
‘without fault’”); James v. Office of Pers. Mgmt., 72
M.S.P.R. 211, 218 (1996) (“[B]oth OPM and the adminis-
trative judge apparently found that the appellant’s re-
sponse to OPM’s questionnaire . . . stating that he was
receiving social security disability payments was suffi-
cient to meet the ‘prompt notification’ requirement so as
to render him without fault”).
10 BOYD v. OPM
We conclude that Ms. Boyd is without fault under the
plain terms of OPM’s guidelines. The administrative
judge’s contrary finding was based on an erroneous inter-
pretation of the law. See Gose v. U.S. Postal Serv., 451
F.3d 831, 836 (Fed. Cir. 2006). 2
2 OPM does not argue that this court should defer
to its litigating position in this case as an authoritative
interpretation of OPM’s regulations and guidelines. It
has therefore waived that argument. See Mass. Mut. Life
Ins. Co. v. United States, 782 F.3d 1354, 1369 (Fed. Cir.
2015). In any event, we note that an agency’s interpreta-
tion of its own regulations is not entitled to deference if,
as in the case of OPM’s brief, the interpretation is “plainly
erroneous or inconsistent with the regulation.” Christo-
pher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166
(2012). While in some circumstances an agency’s litiga-
tion position has been accorded deference as reflecting the
agency’s interpretation of its own regulations, that is not
true in a case such as this one, where the agency’s litigat-
ing position is “wholly unsupported by regulations, rul-
ings, or administrative practice.” Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 212 (1988); see also Inv. Co.
Inst. v. Camp, 401 U.S. 617, 628 (1971) (Where Congress
has delegated authority to an agency, it “has delegated to
the administrative official and not to appellate counsel.”).
We note that the practice of according deference in some
instances to positions taken in agency briefing has been
the subject of considerable recent debate. United Student
Aid Funds, Inc. v. Bible, 136 S. Ct. 1607, 1608 (2016)
(Thomas, J., dissenting from denial of certiorari); see also
Johnson v. McDonald, 762 F.3d 1362, 1366-67 (Fed. Cir.
2014) (O’Malley, J., concurring). But even in its most
vigorous form, that practice would not support the inter-
pretation of OPM’s regulations and guidelines found in
the brief submitted on behalf of OPM in this case, particu-
BOYD v. OPM 11
2. OPM next argues that even if the Prompt Notifica-
tion Exception applies, it does not justify a waiver in this
case. OPM points out that Ms. Boyd has raised only a
claim of financial hardship; according to OPM, she was
required to show “exceptional circumstances” in order to
be eligible for a waiver. As OPM’s Policy Guidelines make
clear, the “exceptional circumstances” standard is much
more demanding than the “equity and good conscience”
standard, as “exceptional circumstances” are limited to
“extremely egregious errors or delay by OPM.” But
OPM’s argument skips an important step.
As noted, for a person like Ms. Boyd who is “without
fault,” the OPM guidelines require a determination
whether that person “suspected or knew” that he or she
had received an overpayment. The administrative judge,
however, did not decide that critical question. OPM takes
the position that there was no need for the administrative
judge to do so. OPM argues that Ms. Boyd must demon-
strate exceptional circumstances to obtain a waiver, and
notes that she has only alleged and put forth evidence of
financial hardship, which is not an exceptional circum-
stance. Policy Guidelines § I.C.4.
We find no support in the OPM Policy Guidelines for
OPM’s argument. The Set-Aside Rule is clear: It applies
if the recipient of a payment “knew”—or, at a minimum,
“suspected”—that the payment was erroneous. Policy
Guidelines § I.C.4. The Set-Aside Rule does not apply to
individuals who do not know or suspect they are being
overpaid. Those individuals do not know that the money
does not belong to them, and may act in good faith when
larly in light of the fact that the position taken in the brief
differs from the position OPM took when it applied the
guidelines to Ms. Boyd’s waiver request in its January 16,
2015, denial letter.
12 BOYD v. OPM
they fail to set aside the overpayments. See Okonski v.
Office of Pers. Mgmt., 63 M.S.P.R. 446, 453 (1994) (appel-
lant could not reasonably have been expected to set aside
money if he did not have a reason to know that it was an
overpayment).
To place unknowing individuals in the same position
as knowing individuals is an unreasonable interpretation
of the guidelines, as it renders the language requiring
knowledge superfluous. Policy Guidelines § I.C.4 (“Indi-
viduals who are aware that they are receiving overpay-
ments are obligated by the principles of equity and good
conscience to set aside the amount overpaid pending
recoupment by OPM. Thus, an individual who accepted a
payment which he/she suspected or knew to be erroneous
. . . is obliged to set the overpaid money aside”); see also
id. § I.B.3 (“[T]he fact that they suspected or knew that
they had received an overpayment—as evidenced by their
contacting of OPM—will have a bearing on equity and
good conscience determinations.”).
The analysis is therefore different for unknowing
individuals, for whom the equity and good conscience test
applies. And for such persons, financial hardship can
serve as a basis for finding that recovery is against equity
and good conscience. 5 C.F.R. § 831.1403(a)(1).
3. Even though the question of knowledge was not
answered below, OPM argues that Ms. Boyd knew of the
overpayment based on the administrative judge’s finding
that Ms. Boyd received the June 21 notice. OPM points
out that Ms. Boyd followed the instruction in the notice to
inform OPM of her award of Social Security benefits.
According to OPM, that proves she understood the notice,
which also “instructed her” not to negotiate her Social
Security benefits; therefore, according to OPM, she knew
she was supposed to set those payments aside.
This may be enough evidence from which to infer
knowledge. But Ms. Boyd argues it is not, both because
BOYD v. OPM 13
the June 21 letter was less clear than OPM contends 3 and
because of her personal circumstances. 4 This is a factual
debate for the Board to resolve in the first instance.
Because neither the administrative judge nor the Board
made any findings on the issue of knowledge, we remand
for a determination of whether Ms. Boyd knew or suspect-
ed that she had been overpaid, and if she did not, whether
the recovery of the overpayment would be against equity
and good conscience.
4. There is a final point that warrants discussion. In
the penultimate paragraph of its opinion, the Board
stated that the administrative judge correctly found that
Ms. Boyd had not submitted a Financial Resources Ques-
tionnaire for Board review or any other evidence regard-
ing her monthly income and expenses. In light of her
failure to submit such evidence, the Board found “no
reason to disturb the initial decision finding that Ms.
Boyd had been overpaid and that she had failed to prove
that the reduced repayment schedule would cause her
financial hardship.” While the Board’s reference to the
absence of evidence of financial hardship could be read as
3 The Board’s finding that the June 21, 2011, letter
“instructed” Ms. Boyd to set aside the overpayments does
not constitute a finding that she knew or suspected that
she was obliged to do so. She alleged in her original
Appeal Form and in her petition for review to the Board
that she did not understand that she had been overpaid.
What matters is not what she was “instructed” to do, but
whether she adverted to and understood that instruction.
4 According to the guidelines, a “[k]nowledge
[d]etermination . . . should take into account” multiple
factors, including “the individual’s age, physical and
mental condition, and/or the nature of the information
supplied to him/her by OPM or a Federal agency.” Policy
Guidelines § I.B.4.
14 BOYD v. OPM
setting forth an alternative ground for upholding the
administrative judge’s decision on the issue of waiver, the
portion of the administrative judge’s opinion to which that
discussion was addressed, as clearly stated in the Board’s
final decision, was the portion discussing the adjustment
of the repayment schedule. The ground relied on by the
administrative judge for denying Ms. Boyd’s requested
waiver—and the ground upheld by the Board regarding
her waiver request—was that she was not without fault
regarding the overpayment, and that conclusion, we hold,
was legally erroneous. 5
B
Ms. Boyd also contends that the Board abused its
discretion in finding that she failed to show good cause for
her failure to respond to the Board’s electronic notices.
Ms. Boyd relies on the “good cause” standard from 5
C.F.R. § 1201.12, which provides that “[a] judge may, for
good cause shown, waive a Board regulation unless a
5 A further reason for not upholding the Board’s de-
cision on waiver based on the absence of evidence of
financial hardship is that OPM failed to include Ms.
Boyd’s 2013 Financial Resources Questionnaire in the
agency record that was sent to the Board, which may have
affected the Board’s financial hardship analysis. That
evidence, if it is available, should be considered on re-
mand to the extent the Board concludes it is relevant.
Ms. Boyd also claims that the administrative judge
and the Board failed to consider evidence of financial
hardship that she submitted. On remand, if Ms. Boyd
prevails on her claim that she did not know or suspect she
was receiving overpayments, the Board will be free to
consider that evidence, and any other evidence it consid-
ers appropriate in addressing the issue of financial hard-
ship.
BOYD v. OPM 15
statute requires application of the regulation.” See Phil-
lips v. United States Postal Serv., 695 F.2d 1389, 1391
(Fed. Cir. 1982) (affirming Board decision not to excuse
untimely filing of appeal under 5 C.F.R. § 1201.12 when
untimeliness resulted from “inexcusable lack of diligence”
and “carelessness”).
The Board rejected Ms. Boyd’s argument on the
ground that her failure to file a prehearing submission or
to request a hearing was attributable to her lack of dili-
gence. See Rocha v. Merit Sys. Prot. Bd., 688 F.3d 1307,
1311 (Fed. Cir. 2012) (stating that, under good cause
standard, the Board “acted well within its discretion” in
refusing to allow untimely filing when the petitioner did
not “carry his burden to establish that he exercised due
diligence or ordinary prudence in monitoring his case.”).
The only explanation Ms. Boyd provides for her fail-
ure to submit evidence to the administrative judge or to
respond to the administrative judge’s show-cause order by
requesting a hearing is that her fiancé deleted all the
emails sent by the Board from the email account she
chose to use for e-filing. That explanation, however, does
not justify her failure, given her choice to register as an e-
filer.
As the Board noted, Ms. Boyd chose to receive Board
communications exclusively by email. See 5 C.F.R.
§ 1201.14(e)(1) (“Registration as an e-filer constitutes
consent to accept electronic service of . . . documents
issued by the [Board].”); id. § 1201.14(j)(2) (providing that
the Board will serve by non-electronic means only when
advised of non-delivery of e-mail, followed by a second
failed attempt). Moreover, even if the relevant emails
were mistakenly deleted, Ms. Boyd was “responsible for
monitoring [her] case activity at the Repository at e-
Appeal Online to ensure that [she] ha[d] received all case-
related documents.” Id. § 1201.14(j)(3); see also id.
§ 1201.14(j)(2) (noting that “[d]elivery of e-mail can en-
16 BOYD v. OPM
counter a number of failure points” and stating that “[e]-
filers are responsible for ensuring that e-mail from
@mspb.gov is not blocked by filters”). 6
C
Notwithstanding Ms. Boyd’s failure to respond to the
administrative judge’s directions regarding the submis-
sion of evidence and argument, and her failure to request
a hearing, the administrative judge’s decision, sustained
by the Board, was based on a legally erroneous applica-
tion of the overpayment recovery statute, 5 U.S.C.
§ 8346(b), as interpreted by OPM in its regulations and
Policy Guidelines. We therefore vacate the Board’s order
and remand for further consideration of Ms. Boyd’s claim
under the correct legal standards.
VACATED AND REMANDED
6 Ms. Boyd argues that administrative judges
“should provide more guidance to pro se appellants and
interpret their arguments in the most favorable light.”
O’Keefe v. U.S. Postal Serv., 318 F.3d 1310, 1316 (Fed.
Cir. 2002). Here, however, the administrative judge did
not have the opportunity to provide such guidance, given
Ms. Boyd’s nonresponsiveness. Ms. Boyd’s pro se status
does not excuse her failure to meet the e-filing require-
ments. See Rocha, 688 F.3d at 1310 (concluding that the
Board did not abuse its discretion in refusing to allow the
untimely filing of a petition for review by a pro se peti-
tioner because he “was required by regulation” to monitor
his case activity).